from the time-to-put-it-out-of-its-misery dept

Europe's use of the copyright levy system, effectively a tax on blank media that is supposed to compensate copyright holders for an alleged "loss" from copies made for personal use, has produced a whole string of messy situations -- for example, in the Netherlands, Portugal, Spain and the UK. These have come about as governments have tried reconcile an antiquated system originally designed for cassette tapes with modern digital technologies. The EU's highest court, the Court of Justice of the European Union (CJEU), has just handed down an important judgment in this area. The IP Kat blog explains the background:

Finland-based Nokia sold mobile phones to business customers in Denmark, who resold them to both individuals and business customers.

Whilst all Nokia phones have an internal memory (i.e. the storage device is non-detachable), certain models have an additional memory card (i.e. which is detachable).

On these detachable memory cards, users could store data (e.g. contact details, photographs) as well as files containing audiovisual works (e.g. music, films which may have been downloaded from the web or from DVDs, CDs, MP3 players etc).

In this regard, these memory cards are "multifunctional media" with the capacity to be used for private copying (in relation to the audiovisual files), as well as for uses unrelated to private copying (e.g. storing personal data).

Nokia disputed its liability to pay a private copying levy to the Danish collecting society, Copydan Båndkopi, in relation to the detachable memory cards that were imported into Denmark for use in its mobile phones between 2004 and 2009.

That gives an idea of just how complicated the issues raised by copyright levies have become. The IP Kat blog goes on to analyze the CJEU's reply to six questions that were referred to it by a court in Denmark, seeking clarification. The answers are as complicated as the issues, so you may prefer this alternative summary from Hogan Lovells's Global Media and Communications Watch blog:

The CJEU takes the view that, in principle, it is irrelevant whether a medium is unifunctional or multifunctional. Copyright levies may be imposed, if at least one function allows for private copying, even if this function is of ancillary nature. However, the primary function of the carrier is to be taken into account whilst assessing what might be a fair compensation. Member States may further distinguish between storage media which is detachable (like in Nokia's case) and media which is non-detachably integrated in a device. However, the differentiation must be reasonably justified.

Actually, it's not as simple as that, because there's another issue that needs to be addressed:

A particular problem exists where storage media is sold to business customers without a clear picture of whether those are sold on to private individuals only or also to business customers. The latter do not fall under the private copying exemption and hence the compensation requirement does not apply (see: CJEU, Case Ref.: C-467/08). Manufacturers and importers may also be required to pay copyright levies. However, this is only justified if practical difficulties ask for such regulation. Those may arise from, for instance, the impossibility of or at least practical severity associated with identifying the final users of the relevant medium. Further, adequate exemption schemes must be in place allowing manufacturers and importers to prove that Article 5(2)(b) of Directive 2001/29 and thereby the private copying exception does not apply to their sales.

Even that is not the end of it: the blog post goes on to discuss some of the other detailed issues raised by the CJEU's ruling. However, it is relatively simple to summarize the entire judgment in a single sentence: that the EU's copyright levies are a complex, unworkable mess, and should be abolished completely across the whole of Europe, as has already happened in some of the more sensible EU Member States.

from the not-just-packet-collisions dept

It would be an understatement to say that net neutrality has been in the news quite a lot recently. One of the supposed arguments against it is that requiring all data packets to be treated equally within a connection will prevent companies from offering us a cornucopia of "specialized services." The main example cited is for medical applications -- the implication being that if net neutrality is required, people are going to die. Speaking at the Mobile World Congress that is currently underway, Nokia's CEO Rajeev Suri has come up with a novel variation on that theme, as reported by CNET (via @AdV007):

Suri emphasises that self-driving cars need to talk over wireless networks fast enough to make decisions with the split-second timing required on the roads. "You cannot prevent collisions if the data that can prevent them is still making its way through the network", said Suri, discussing Nokia's drive toward instantaneous low-latency communication across the network.

Yes, according to Suri, there are going to be terrible pile-ups on the roads unless we get rid of net neutrality. Leaving aside the fact that low-latency communications across the internet will come anyway -- if there's one thing that's certain in the world of digital technology, it's that everything gets faster and cheaper -- there's another problem with this argument.

Self-driving cars that are so reliant on such guaranteed, high-performance networks are hardly going to be very resilient in real-life situations -- and certainly not the kind of system that the public will want to entrust with the lives of themselves and their families. If self-driving cars are to be widely accepted, one of their key features must be the ability to work safely even with the flakiest of internet connections. Suri's attempt to use this emerging technology as a weapon against net neutrality instead undermines the argument for self-driving cars themselves.

from the not-so-secret-anymore dept

A few years back, Microsoft trumpeted a series of high-profile licensing deals with manufacturers of smartphones and tablets whose Android-based products, it claimed, were infringing on its patents. As we pointed out, the deals proved nothing about the validity of that claim -- just that Microsoft and the companies concerned had come to some mutually-acceptable arrangement, of which nearly all details were kept secret. In particular, Microsoft refused to reveal which of its many patents it claimed were infringed upon by Android. This allowed it to point to the licensing deals as "proof" that Android was infringing without ever actually needing to demonstrate that in the courts. It could then go to other manufacturers and encourage them to sign up too, which of course strengthened its story yet further for the round of negotiations after that.

Unfortunately for Microsoft, China has just put a stop to that clever, self-sustaining approach by revealing the patents involved. Microsoft was required to list them as part of the approvals process by the Chinese Ministry of Commerce (MOFCOM) for the US company's acquisition of Nokia. As Ars Technica explains:

A list of hundreds of patents that Microsoft believes entitle it to royalties over Android phones, and perhaps smartphones in general, has been published on a Chinese language website.

The patents Microsoft plans to wield against Android describe a range of technologies. They include lots of technologies developed at Microsoft, as well as patents that Microsoft acquired by participating in the Rockstar Consortium, which spent $4.5 billion on patents that were auctioned off after the Nortel bankruptcy.

More specifically:

The Chinese agency published two lists on a Chinese-language webpage where it laid out conditions related to the approved merger. The webpage has an English version, but it doesn't include the patent lists. There's a longer list [MS Word Doc] of 310 patents and patent applications and then a shorter list [MS Word Doc] of just over 100 patents and applications that MOFCOM focused on.

Doubtless lawyers at many companies with products using Android are busy poring over those lists, which include US patent numbers as well as titles in English. At the very least, the release of these lists will make Microsoft's attempts to sign up new licensees much harder, since now companies will know exactly what Microsoft is claiming in this regard before they enter into any negotiations. Moreover, it's good news for the open source community, which is able to examine what claims Microsoft might be making about the free software elements of Android, allowing those to be challenged with prior art, say, or coded around.

But there's another important aspect here. Microsoft had managed to keep the lid on its secret anti-Android list of patents for many years. What changed things was the emergence of China as a sufficiently important market that the US company felt obliged to accede to the Chinese government's demands for a full list of the patents involved. The publication of the patent lists on the MOFCOM Web site is an indication that China will play by its own rules here, even -- or perhaps especially -- when it is dealing with what was once the world's most powerful computing company.

By September 2004, the NSA had developed a technique that was dubbed “The Find” by special operations officers. The technique, the Post reports, was used in Iraq and “enabled the agency to find cellphones even when they were turned off.” This helped identify “thousands of new targets, including members of a burgeoning al-Qaeda-sponsored insurgency in Iraq,” according to members of the special operations unit interviewed by the Post.

When a mobile device running the Android Operating System is powered off, there is no part of the Operating System that remains on or emits a signal. Google has no way to turn on a device remotely.

Google may not have a way, but that doesn't mean the NSA doesn't.

Nokia:

Our devices are designed so that when they are switched off, the radio transceivers within the devices should be powered off. We are not aware of any way they could be re-activated until the user switches the device on again. We believe that this means that the device could not be tracked in the manner suggested in the article you referenced.

Once again, we're looking at words like "should" and "not aware." This doesn't necessarily suggest Nokia does know of methods government agencies could use to track phones that are off, but it doesn't entirely rule it out either.

Samsung's response is more interesting. While declaring that all components should be turned off when the phone is powered down, it does acknowledge that malware could trick cell phone users into believing their phone is powered down when it isn't. Ericsson, which is no longer in the business of producing cell phones (and presumably has less to lose by being forthright), was even more expansive on the subject.

The only electronics normally remaining in operation are the crystal that keeps track of time and some functionality sensing on-button and charger connection. The modem (the cellular communication part) cannot turn on by itself. It is not powered in off-state. Power and clock distribution to the modem is controlled by the application processor in the mobile phone. The application processor only turns on if the user pushes the on-switch. There could, however, be potential risks that once the phone runs there could be means to construct malicious applications that can exploit the phone.

On the plus side, the responding manufacturers seem to be interested in ensuring a powered down phone is actually powered down, rather than just put into a "standby" or "hibernation" mode that could potentially lead to exploitation. But the implicit statement these carefully worded denials make is that anything's possible. Not being directly "aware" of something isn't the same thing as a denial.

Even if the odds seem very low that the NSA can track a powered down cell phone, the last few months of leaks have shown the agency has some very surprising capabilities -- some of which even stunned engineers working for the companies it surreptitiously slurped data from.

Not only that, but there's historical evidence via court cases that shows the FBI has used others' phones as eavesdropping devices by remotely activating them and using the mic to record conversations. As was noted by c|net back in 2006, whatever the FBI utilized apparently worked even when phones were shut off.

The surveillance technique came to light in an opinion published this week by U.S. District Judge Lewis Kaplan. He ruled that the "roving bug" was legal because federal wiretapping law is broad enough to permit eavesdropping even of conversations that take place near a suspect's cell phone.

Kaplan's opinion said that the eavesdropping technique "functioned whether the phone was powered on or off." Some handsets can't be fully powered down without removing the battery; for instance, some Nokia models will wake up when turned off if an alarm is set.

While the Genovese crime family prosecution appears to be the first time a remote-eavesdropping mechanism has been used in a criminal case, the technique has been discussed in security circles for years.

Short of pulling out the battery (notably not an option in some phones), there seems to be little anyone can do to prevent the device from being tracked and/or used as a listening device. The responding companies listed above have somewhat hedged their answers to the researcher's questions, most likely not out of any deference to government intelligence agencies, but rather to prevent looking ignorant later if (or when) subsequent leaks make these tactics public knowledge.

Any powered up cell phone performs a lot of legwork for intelligence agencies, supplying a steady stream of location and communications data. If nothing else, the leaks have proven the NSA (and to a slightly lesser extent, the FBI) has an unquenchable thirst for data. If such exploits exist (and they seem to), it would be ridiculous to believe they aren't being used to their fullest extent.

from the that's-not-a-good-thing dept

One of the more glossed over parts of Microsoft buying large parts of Nokia was that it was actually a two-part transaction. It spent $5 billion on Nokia's mobile phones unit and then another $2.18 billion to license Nokia's patent portfolio. Many reports just summarized this as Microsoft spending $7.2 billion to buy Nokia. But the licensing tidbit is interesting -- and potentially concerning, as it leads to quite reasonable speculation that the emptied shell of Nokia is about to become a massive, annoying patent troll.

There's no doubt that the company has a variety of important mobile device and mobile data patents. The license with Microsoft lasts for ten years, but there's nothing stopping Nokia from going after others. Yes, many key players already have licensing deals in place, but there are always more targets to go after, especially in such a dynamic and innovative arena. And, without having to worry about patent nuclear war being pointed back at Nokia, potentially harming its own phone business, you'd have to imagine that the company will be more willing than ever to aggressively try to squeeze money out of others.

Nokia has been deterred from asserting its patents too aggressively by the risk of retaliation by competitors. Nokia’s rivals have patents of their own, and if they felt the Finnish company was making unreasonable demands, they could have filed patent infringement lawsuits themselves.

Without that deterrent, Nokia has plenty of incentives to become an incredibly annoying and disruptive patent troll.

But here's the thing that I find most fascinating about this: it's a reminder of just how quickly and completely a "dominant" tech firm can almost disappear off the face of the earth. Go back to 2007 (also known as The Time Before The iPhone) and Nokia absolutely and totally dominated the mobile phone market. In fact, I remember making a joke around 2005 or so mocking another company for suggesting that it could pass Nokia in the market (I can't remember which company, but it may have been Samsung) and a telco analyst much wiser than myself scolded me, reminding me how quickly the market can change -- and he was totally correct. Two quick images tell the story. The first, put together by the Guardian using Gartner data, shows how Nokia (via Symbian) basically owned the smartphone market for quite some time. And then its lead disappeared:

Or, if you look at it from a profit share realm by vendor, as Asymco did last year, you get an even more dramatic story, where Nokia's ability to profit from mobile phones went away.

Even its overall lead in selling all kinds of phones (going beyond the smartphones and into cheaper phones around the globe, a market that it absolutely dominated) was lost a bit ago to Samsung. Just a few weeks ago, Mobile Unlocked put together an astounding interactive chart showing overall mobile phone sales quarter by quarter going way back. This static image below doesn't do it justice. Check out the full thing:

No matter how you slice the data, it's undeniable that Nokia absolutely and totally dominated the market. Plenty of people (as noted, myself included) thought that lead was more or less insurmountable. While many may argue otherwise today, at the time it was very, very difficult (unless you were that prescient analyst I talked to) to envision a world in which there was such a major market shift that would take Nokia off its game so totally. And then, along came the iPhone. And Android. And the world changed. And Nokia clearly wasn't ready for it, didn't recognize where the world was heading and was unable to respond in a timely fashion. It tried to shift much later in the game, but it was way, way, way too late.

In fact, it could be argued that its own success was part of the problem. Nokia was heavily invested in Symbian and had committed to following that path. This is actually something that's not uncommon with dominant players. In some ways, they're a victim of being there first. When a disruptive innovation comes along, they can't shift on a dime, and the innovations effectively leapfrog right over them. Yes, you can ride out cash cows for a long time -- and Nokia has done so (as, it appears, has Microsoft...) but eventually the music stops.

I bring this up because we seem to go through this quite often -- with people fretting about certain "dominant" tech firms, and how something has to be done to stop them or they'll have too much power. But, as we see time and time again, it often seems that "something" is done in the form of regular competition and innovation from others, who can come out of nowhere and completely take down a giant in a very, very short period of time.

7,564,784: Method and arrangement for transferring information in a packet radio service

6,170,073: Method and apparatus for error detection in digital communications

7,848,353: Method, communication system and communication unit for synchronisation for multi-rate communication

If these sound like a set of fairly random and extremely broad patents, you'd have a point. Just take a look at that first one, which is basically claiming the ability of a computer system to receive a URL (say, in an email message) and automatically pull part of the page in to the first computer -- ie., it's a patent on a really basic and obvious concept, to proactively pull data from a website referenced in a link as a sort of preview. As is so often the case with patents like this, this is the kind of thing lots of people talked about around the time it was patented, but which people didn't do because other aspects of the infrastructure weren't ready yet, such as bandwidth (i.e., in 1995, people didn't want to push too much to a user's computer, because there was a good chance they were speeding along on a 2400 baud modem).

Most of the other patents are similarly broad or obvious concepts that were generally not being done because of other factors, not because there was anything non-obvious about the idea, or that it was particularly difficult to do. A patent is supposed to incentivize someone to invent something that wouldn't otherwise be invented. That's not happening here.

And, remember, this is the same Intellectual Ventures that claims it that it focuses on "high quality" patents.

Oh yeah, also, for all the talk about IV's inventive operations, not a single one of these patents originated with IV. And they're not from the proverbial "independent inventor" IV likes to claim it's helping. The 784 and 073 patents both came from Nokia, while the other patents originated with a variety of other companies: NetDelivery, Conexant, ViA, In Motion and IP Wireless. Most of the companies are still in business. It's unclear if anyone -- such as Nokia -- retains an interest in those patents, but that would be a pretty slimy move to pass off patents to IV to avoid suing a direct competitor themselves. As Groklaw rightly notes, this certainly has all the hallmarks of privateering, where big companies pass off their patents to some trolls to do their dirty work. It's just that, in this case, the troll is the world's largest, Intellectual Ventures.

from the get-over-yourselves dept

FairSearch, the increasingly silly and shrill looking "coalition" of tech companies which have nothing in common other than a visceral hatred for Google (it's led by Microsoft) has so far failed miserably in convincing regulators that Google was an antitrust problem. Now it's filed a new attack on Google in the EU, arguing that its Android mobile strategy is anti-competitive because it gives Android away for free.

“Google is using its Android mobile operating system as a ‘Trojan Horse’ to deceive partners, monopolize the mobile marketplace, and control consumer data,” said Thomas Vinje, Brussels-based counsel to the FairSearch coalition. “We are asking the Commission to move quickly and decisively to protect competition and innovation in this critical market. Failure to act will only embolden Google to repeat its desktop abuses of dominance as consumers increasingly turn to a mobile platform dominated by Google’s Android operating system.”

[....] Google achieved its dominance in the smartphone operating system market by giving Android to device-makers for ‘free.’

What's especially ridiculous here is that Microsoft, who is the major source behind FairSearch, dealt with this exact issue itself back during its antitrust fights, when people ridiculously accused it of the same thing for daring to give out Internet Explorer for "free." The idea that giving away some software for free is somehow anti-competitive is just laughable. That this is now being pushed by a bunch of companies who themselves use the exact same benefits of giving away free software to promote other parts of their business is just the height of cynical exploitation of the political process to try to hamstring a competitor in red tape, rather than competing in the marketplace.

Law Professor James Grimmelman, who is hardly a big Google supporter (he was among those who fought the hardest against the Google Books settlement) properly called this new filing by FairSearch "disgusting." It's a blatantly cynical attempt by Microsoft, Nokia, Expedia, TripAdvisor and Oracle to use a totally bogus legal complaint to just waste a competitor's time. All of those companies rely on free software in some form or another. No one in their right mind argues that offering free software is somehow anti-competitive. It seems that FairSearch has now reached hysterical desperation as it attempts to justify itself.

from the smart-move dept

While Nokia has quickly become an afterthought in the high-end phone world after being such a dominant player for so long, it's been trying to make a comeback lately. My friend Tom recently sent over an interesting move that Nokia made: releasing its own 3D printing kit for anyone who wants to print cases for their flagship Lumia 820, that goes beyond merely the printing templates:

It's still very early in the whole 3D printing world, so this may seem rather simple, but it's neat to see companies starting to figure out how to make use of these kinds of new technologies in a positive way, rather than ignoring them or (worse) actively fighting them. In fact, it's clear that Nokia is thinking beyond just this:

In the future, I envision wildly more modular and customizable phones. Perhaps in addition to our own beautifully-designed phones, we could sell some kind of phone template, and entrepreneurs the world over could build a local business on building phones precisely tailored to the needs of his or her local community. You want a waterproof, glow-in-the-dark phone with a bottle-opener and a solar charger? Someone can build it for you—or you can print it yourself!

Again, small steps, but it's through these kinds of learning experiences that we often see something bigger emerge.

from the not-too-comforting dept

This is a bit crazy. After a security researcher pointed out that Nokia's Xpress Browser is basically running a giant man in the middle attack on any encrypted HTTPS data you transmit, the company played the whole situation down by saying, effectively, sure, that's what we do, but it's not like we look at anything. This is, to put it mildly, not comforting. Just the fact that they're running a man in the middle attack in the first place is immensely concerning. The reason they do it is that this is a proxy browser, similar to Opera, that tries to speed up browsing by proxying a lot of the content -- meaning that all of your surfing goes through their servers. In some cases, this can be much faster for mobile browsing. But, the right way to do such a thing is to only do the proxying on unencrypted traffic. With encrypted traffic, you're just asking for trouble.

After sensing the backlash, Nokia pushed out an update of the browser that appears to remove the man-in-the-middle attack, even as it had tried to claim there was nothing wrong in the first place. However, the original researcher who discovered this, Gaurang K Pandya, updated his post to note that it's not all good news.

Just upgraded my Nokia browser, the version now is 2.3.0.0.48, and as expected there is a change in HTTPS behaviour. There is a good news and a bad news. The good news is with this browser, they are no more doing Man-In-The-Middle attack on HTTPS traffic, which was originally the issue, and the bad news is the traffic is still flowing through their servers. This time they are tunneling HTTPS traffic over HTTP connection to their server